Abortion and the Law: Three
Clarifications from Slaughter
of the Innocents: Abortion, Birth Control and Divorce in Light of Science, Law,
and Theology by John Warwick Montgomery

''The unexamined life," declared Socrates,
"is not worth living." Though this aphorism might seem to favor a proabortion
view (since the unborn are in a poor position to examine their own raison
d'être), we see it as a neutral heuristic principle: the more closely one
examines the particulars of any legal issue, the more likely will light appear
at the end of the tunnel (Or womb). Our modest hope is to remove three
misconceptions bearing on the legal aspects of the abortion question.

The method to be employed is a dangerous one: the jurisprudential examination
of fundamentals. It was just such an approach that resulted in the firing of
young attorney Littlefield from the prestigious firm of Bass and Marshall.
Instead of a traditional brief citing cases, he had had the temerity to quote
Cicero! "There were no cases cited from the Second Circuit at all. Sure, all
the great jurisprudential scholars were there. Kant was there. Wittgenstein
seemed to crop up...." The immortal last words spoken to Littlefield by the
partner to whom he submitted his work were: "Don't call this-a brief."1 But whatever the present memorandum is called,
it should at least aid those concerned with the legal aspects of abortion to
think more clearly on the subject.

Clarification One: Roe v.
Wade Does Not Leave the Personhood of the Fetus as an Open Question

Discussions of the current status of the abortion issue in American law
frequently go on the assumption that change in abortion law in general and the
revolution stemming from Roe v. Wade in particular do not require any ultimate
decision as to whether the unborn are in fact "persons." This view is mightily
reinforced by Mr. Justice Blackmun. speaking for the Court:

We need not resolve the difficult question
of when life begins. When those trained in the respective disciplines of
medicine, philosophy, and theology are unable to arrive at any consensus, the
judiciary, at this point in the development of man's knowledge. is not in a
position to speculate as to the answer.2

But the pragmatic results of the decision in
Roe v. Wade have left little doubt in the minds of the general public, whether
sophisticated or unsophisticated, that the personhood of the unborn has
undergone radical redefinition. One of California's most venerable and
controversial trial lawyers, Vincent Hallinan, thus referred to Roe v. Wade in
arguing another case shortly after that decision came down in 1973:

Do you know who is the biggest dissenter,
the most important dissent-er, in the world at the moment? It is the United
States Supreme Court, which, just a short while ago, came down and, ignoring
Congress, legislators, biblical invocations, and religious groups, outlawed
anti-abortion laws. "A woman," it said, "is the master of her own body and if
at least for the first three months of pregnancy she doesn't want to have a
child, that's up to her and her doctor, and no state and no nation has the
right to restrict her in it." That, my friends, is a dissent from a policy that
has existed for over four thousand years.3

A former law clerk of Associate Justice
Powell quotes a typical letter Powell received after he had joined the
seven-man majority in Roe v. Wade:

Dear Justice Powell,

My name is
__________ and I am 15 years old-a sophomore in high school...

I
think it is wrong for a woman to have an abortion. Some people think it's not
murder for someone to have an abortion, but I think it is. And when they make
murdering helpless unborn children legal, how long will it be before it is
legal to kill sick old people, the mentally retarded, etc.?

The
Supreme Court, it seems to me, should be protecting the rights and lives of all
people, not legalize the murder of the innocent people.

Please try to
do whatever you can to help. Thank you for reading my letter.

Are these gut reactions wide of the mark?
Did the Court manage an act of subtle alchemy in transmuting the fetus's right
to life into the mother's right of privacy, while still leaving the personhood
of the fetus an open question? We think not.

Blackmun's assertion that
"we need not resolve the difficult question of when life begins" is belied by
his references to the fetus as having "potential life."5 Justice Stewart, in his concurring opinion,
uses the descriptive phrase "potential future human life."6 Clearly, human life is not synonymous with
potential human life; an opposition is being created between actuality and
potentiality-to the detriment of the fetus's personhood. The unborn, at least
during the first trimester of pregnancy, is accorded no more than potential
(not actual) personhood, and his rights are being correspondingly
attenuated.

That this construction of Roe v. Wade is not overdrawn
becomes especially plain when we note Blackmun's admission that

The appellee and certain amici argue that
the fetus is a "person" within the language and meaning of the Fourteenth
Amendment. In support of this, they outline at length and in detail the
well-known facts of fetal development. If this suggestion of personhood is
established, the appellant's case, of course, collapses, for the fetus's right
to Iife is then guaranteed specifically by the Amendment. The appellant
concedes as much on reargument.7

Thus the Court, by necessary implication,
rejects the appellee's argument that the fetus is a person within the meaning
of the Fourteenth Amendment. In doing so it does, for good or for ill, "resolve
the difficult question of when life begins" (or, at least. as to when life does
not begin)-the opinions of physicians, philosophers, and theologians
notwithstanding.

How could the Court arrive at its judgment, contrary
as it is to "the well-known facts of fetal development"? How could it disregard
the overwhelming evidence of contemporary genetics as to the personhood of the
fetus?

This first cell [formed by sperm-and-egg
union] is already the embryo of an autonomous living being with individual
hereditary patrimony. such that if we knew the nature of the spermatozoid and
the chromosomes involved, we could already at that point predict the
characteristics of the child, the future color of his hair, and the illnesses
to which he would be subject. In his mother's womb, where he will grow, he will
not accept everything she brings to him, but only that which is necessary to
his existence: thereby he will realize his hereditary patrimony. In that first
cell the profound dynamism and the precise direction of life appears. . . . In
spite of its fragility and its immense needs, an auton-omous and genuinely
living being has come into existence. . . . It is rather surprising to see
certain physicians speak here of "potential life" as if the fertilized egg
began its real life when it nests in the uterus. Modern biology does not deny
the importance of nidation, but it sees it only as a condition-indispensable,
to be sure-for the development of the embryo and the continuation of a life
already in existence.8

Such hard data are ignored by the Court
because the Court convinced itself that it was not in fact deciding the
question of the fetus's personhood, and did not need to do so to arrive at its
abortion decision. "The unexamined life is not worth living." By not examining
what it was really doing, the Court uncritically and gratuitously deprived the
unborn of personhood.

But would it not be fairer to the Court to say
that when Blackmun states that "we need not resolve the difficult question of
when life begins" he is merely declaring that the Court's task is not to
determine personhood in tact, but legal personhood'? Is not the Court simply
sticking to its legal task and refusing to enter into the medical or scientific
realm?

Perhaps this was the Court's intention. Even if so. however,
this will not rehabilitate Roe v. Wade; quite the contrary. For one must not
create a legal definition of personhood which flies in the face of medical
evidence as to what a person in fact is. In National Socialist law, the
Jew-regardless of genetic evidence of his humanity-was deprived of his legal
personhood and destroyed like worthless offal.9 Prior to the American Civil War and the
antislavery Amendments, such decisions as Dred Scott relegated slaves to the
status of legal nonpersons in spite of clear biological evidence of their
humanity.10 Wherever legal personhood has
been defined without reference to objective genetic criteria, the door has been
opened to the most frightful consequences.

As in the tragic examples
just mentioned, the majority in Roe v. Wade were influenced far more by social
and policy considerations than by biological fact. "This holding," they say.
"is consistent with the relative weights of the respective interests involved.
. . and with the demands of the profound problems of the present day."11 What problems'? In particular. the
impassioned demand of many women to be (in the previously quoted words of
Hallinan) absolute "masters of their own bodies."12 Only such essentially social considerations
can explain the bizarre reliance of the Court on Brandeis' 1890 "right to
privacy" doctrine in a situation which bears virtually no relation to the
original meaning of that legal principle.13
(Would the Court now argue that whenever our privacy is potentially
disturbed-e.g.. by prying neighbors or obnoxious newsmen-we may kill the source
of the disturbance and the result will be justifiable homicide'?)

Into such a slough of despond did the Court stumble when it refused to face
squarely the question as to when human life begins. It did not leave that
essential question open; it closed it, to the untold detriment of the unborn.
Perhaps, as in the Dred Scott case, nothing less than a constitutional
Amendment will be required to rectify the muddy judicial thinking of the Court.

Clarification Two: The Recognition of the Unborn in Property
and Inheritance Law Is of High Significance for the Abortion Issue

It is generally conceded, even by those favoring the current relaxed
standard of abortion, that in the area of property law Anglo-American
jurisprudence has maintained remarkable concern for fetal rights.

In contrast to abortion and homicide,
property law has long been one where the fetus at its earliest stages has been
given recognition. Two cases decided in the late eighteenth century are
representative of English common law. Doe v. Clarke held that an unborn child
is one of the "children living" at the time of a testator's demise, and
Thellusson s'. Woodford enumerated fetal rights as including recovery,
execution, devise and injunction. American courts were not hesitant to pick up
the English common law, as evidenced by Hall v. Hancock in 1834 when it was
held that a grandson born almost nine months after the testator's death was a
beneficiary under a bequest to such grandchildren "as may be living at my
death."

In America, Crisfotd v. Starr established the rule that an
infant en ventre sa mere is deemed in esse for the purpose of taking an estate
in remainder the same as if born.

The Rule Against Perpetuities is
perhaps the best instance of the en ventre sa mere doctrine coming into play.
It is well established that a child en ventre sa mere is a life in being at the
death of the testator. This effectuates an extension of the period recovered by
the Rule to 21 years and period of gestation.

In the area of trusts,
the en ventre sa mere doctrine is just as firmly noted: upon the father's
death, a child may be an income recipient of the father's trust before it is
born.14

"Granted," is the usual response, "but all
this means little or nothing, since where the right to life per se is at issue
(homicide, etc.) protection has traditionally commenced only with 'quickening.'
After all, we are dealing with a question of personhood; so property issues
will perforce have little bearing."

This depreciation of the
significance of property law for abortion discussion overlooks the place of
property law in common law jurisprudence. In point of fact-as apologists for
the socialist philosophy of law15 and as
American radical lawyers16 have not ceased
to declare (with disgust) - traditional Anglo-American law elevates the concept
of property to a sacral level.

Holdsworth speaks of "the most unique
branch of the common law - the law of Real Property."17 One of the ways in which that uniqueness
manifested itself was in the high value placed upon property and the
corresponding reticence of the courts or legislatures to tamper with existing
property law. Writes Simpson in the concluding chapter of his standard
Introduction to the History of the Land Law:

Those who did understand the system
encouraged the view that it was dangerous to meddle with so elaborate a
structure, upon which the sacred property rights of the people were based.

... The old concepts of the law are not roughly handled; the definitions
of Littleton and Coke still find their place in a modern textbook; lawyers can
still gravely dispute the modern effects of Quia Emptores. For all the
legislative interference which it has suffered, the law of property continues
to display an extraordinary measure of historical continuity.18

Why do property rights carry a sacral
quality in the common law? Let us hear from the two most influential writers of
general legal textbooks in the history of the common law: Blackstone and Kent.

Blackstone after discussing "The Rights of Persons" in Book I of his
Commentaries, proceeds in Book II to treat "The Rights of Things" Book II
Chapter 1 deals with "Property in General," and there we read:

There is nothing which so generally
strikes the imagination, and engages the affections of mankind, as the right of
property; or that sole and despotic dominion which one man claims and exercises
over the external things of the world, in total exclusion of the right of any
other individual, in the universe...

In the beginning of the world,
we were informed by holy writ, the all-bountiful Creator gave to man "dominion
over all the earth; and over the fish of the sea, and over the fowl of the air,
and over every living thing that moveth upon the earth." This is the only true
and solid foundation of man's dominion over external things, whatever airy
metaphysical notions may have been started by fanciful writers upon this
subject...

...In the case of habitations in particular, it was natural
to observe that even the brute creation, to whom everything else was in common,
maintained a kind of permanent property in their dwellings, especially for the
protection of their young; that the birds of the air had nests, and the beasts
of the field had caverns, the invasion of which they esteemed a very flagrant
injustice, and would sacrifice their lives to preserve them. Hence a property
was soon established in every man's house and home-stall. . . . 19

It will be noted that Blackstone
unequivocally establishes property rights on a revelatory foundation, citing
Genesis 1:28 and alluding to Jesus' words in Matthew 8:20 (parallel passage,
Luke 9:58) as the source of his argument. For Blackstone, property law had
divine sanction. Applying modern philosopher of religion Rudolf Otto's
terminology, property in Blackstone's view was embraced in "the idea of the
holy": it was sacral, an aspect of the numen tremendens et fascinosum.

Chancellor Kent, whose influence on American law in many ways corresponds
to Blackstone's on English jurisprudence,20
likewise sets forth a numinous conception of property rights.

The sense of property is inherent in the
human breast, and the gradual enlargement and cultivation of that sense, from
its feeble force in the savage state, to its full vigor and maturity among
polished nations, forms a very instructive portion of the history of civil
society. Man was fitted and intended by the Author of his being for society and
government, and for the acquisition and enjoyment of property. It is, to speak
correctly, the law of his nature; and by obedience to this law, he brings all
his faculties into exercise, and is enabled to display the various and exalted
powers of the human mind.

...The right of property, founded on
occupancy, is suggested to the human mind by feeling and reason prior to the
influence of positive institutions.21

Particularly illuminating is Kent's
citation of authorities for his position. He quotes Selden's definition of
natural law and refers to Aristotle, Plato, Cicero, and to Hooker's
Ecclesiastical Polity in the same connection. On the principle of occupancy as
establishing property rights, he quotes the fundamental aphorism from
Justinian's Digest, ''Quod enim nullius est id ratione naturali occupanti
conceditur";22 the significance of this
reference lies in the fact that Roman law distinguished between "civil" and
"natural" acquisition of property, and classed acquisition by occupancy as
''natural'' (i.e., ''recognized by the jus gentium"23). Since the jus gentium is "that law which
natural reason has established among all men, is equally observed among all
nations, and is called the 'law of nations,' as being the law which all nations
use,"24 Kent is saying that the root
concepts of property ownership are part of the natural law deriving from no
less a source than "the Author of [man's] being." Thus the Chancellor, though
during most of his life ''inclined to Unitar-ianism" (as he put it)25 and so more comfortable with arguments from
natural law than from the Bible-Blackstone's "holy writ" - held no less than
Blackstone to a sacral view of property and of its concomitant legal relations.

Whatever may be the case in other legal systems, therefore, one
cannot dichotomize person and property, to the detriment of the latter, in the
context of the common law. Property, no less than personhood, is regarded as
sacred-for both are part of the "natural law" and originate from the divine
will.

Indeed, there is a sense in which property rights are superior
to personal rights! Blackstone has already expressed his awe at "the right of
property . . . that sole and despotic dominion which one man claims and
exercises over the external things of the world, in total exclusion of the
right of any other individual in the universe." Here he alludes to the
distinction between rights in rein as contrasted with rights in personam:
whereas personal rights (rights in contract, etc.) are available only against
some particular or determinate person or persons, rights in rem are available
against the whole world. Digby observes that "the law dealing with rights in
rem may be called-using the term 'property' in a large sense-the law of
property, or the law dealing with property rights.''

The rights and their corresponding duties
which form the matter of English private law are first to be divided into two
great classes, differing from each other in respect of the persons on whom the
duties, which correlate to the rights, are incumbent. A person may have a right
the essence of which consists in the fact that all other persons whatsoever are
under a duty corresponding to the right; or he may have a right the essence of
which consists in the fact that the corresponding duty is incumbent on some one
or more determinate person or persons. An example of the first class of rights
is the right of property which a person has in or over a piece of land or a
herd of cattle. All other persons whatsoever are bound to abstain from acts
injurious to his power of dealing as he pleases with his own, In other words,
he may enjoy, use, and, if he pleases, if the thing is perishable, use up, the
thing which is the subject of the right, subject only to certain general
limitations, and also to certain special limitations prevailing in particular
cases, where his rights are limited by conflicting rights possessed by other
persons over the same subject. 'Rights of this class have received the name of
rights in rem, an expression which means, not rights over things, but rights
available against all the world, i.e., where a duty is incumbent on all persons
whatsoever to abstain from acts injurious to the right.26

He continues, "If the word 'property' were
not so ambiguous, one might venture to suggest that the 'law of property,' or
'of property rights,' should be substituted for the obscure expression 'rights
in rem.'

In other words, common-law jurisprudence imparts an absolute
quality to property rights ("against all the world") which it hesitates to find
in the realm of personal rights as such. We may of course disagree with such a
jurisprudential philosophy, but we can hardly deny that this is what the common
law is saying.

Nor can we deny the implications of this high view of
property for the issue at hand; namely, the extent to which the common law
regards the fetus as a person. In that realm of the common law- property
rights-where the protections afforded are the most unqualified and absolute (in
rem), the fetus has most consistently been given recognition from the moment of
conception. Putting it otherwise, when the common law has had its most
unqualified rights at stake-inheritance, etc. - it has been the least willing
to place the beginning of human life later than conception itself.

In
light of this fundamental perspective of common-law jurisprudence, can we not
agree with Byrn that the "quickening" issue is little more than a red herring?

Quickening was never intended as a
substantive standard for the beginning of human life. It evolved purely as an
evidentiary device. As a Massachusetts court observed in 1834: "The distinction
between a woman being pregnant, and being quick with child, is applicable
mainly. if not exclusively, to criminal cases" (Hall v. Hancock).27

In criminal cases, where the standard of
proof has been very high (to a moral certainty, beyond reasonable doubt) it is
understandable that evidentiary devices have been applied which give defendants
the maximal benefit of the doubt. Quickening served as just such a device in an
age of elementary medical knowledge. Today, however, we have far more
sophisticated techniques for determining the existence of life in the womb, and
it is hopelessly anachronistic to stress the medieval quickening rule. Even
more important, as we have been at pains to show, the history and spirit of the
common law should lead us back from this byway to the main thoroughfare: that
fundamental principle of in em property law which declares that the rights of
human beings are to be protected from the very moment of conception.

Clarification Three: The International and Comparative Law of Human
Rights Favors the Unborn

One often gets the impression by
listening to advocates of the current relaxed view of abortion that Roe v. Wade
finally brought the United States out of traditionalistic obscurantism into the
modern world. We have already seen, however, that the Court arrived at its
decision by totally ignoring current genetic knowledge as to the commencement
of human life. Now let us face the equally unpleasant fact that our American
case law now flies in the face not only of modern science, but also of the most
recent and advanced developments in the international and comparative law of
human rights.

It is true that some countries, such as France, have
liberalized their abortion laws since Roe v. Wade.28 But in the Federal Republic of Germany
(BRD), the Federal Constitutional Court struck down the relaxed abortion
provision of the Federal Diet's Fifth Law for the Reform of the Penal Code.29 That decision now constitutes an admissible
case before the European Commission of Human Rights.30

The overall picture of fetal
rights in the international and comparative law of human rights has become
clear through a land-mark analysis by two French legal scholars. Alexandre Kiss
and Jean-Bernard Marie.31 They point out,
inter alia. that even though it is true that the fetus does not automatically
benefit from all the protections and freedoms afforded by international
conventions, nevertheless, since the fetus is part of the mother's body, it
"benefits by way of the mother from the protections accorded to
her-specifically including the right to life" (example: Article 6 of the United
Nations Covenant on Civil and Political Rights, prohibiting the execution of
the death penalty pronounced against a pregnant woman; the same principle would
apply a fortiori to torture and to cruel or inhuman treatment).

Moreover, the most recent international human rights agreements show increasing
sensitivity to and concern for the protection of the human person from the very
moment of conception. Thus the (nonobligatory) Declaration of the Rights of the
Child states in its Preamble that the child "requires appropriate juridical
protection before as well as after birth." The American Convention of Human
Rights, which entered into force in 1978, declares (Article 4) that

Every person has the right to have his
life respected. This right shall be protected by law and, in general, from the
moment of conception. No one shall be arbitrarily deprived of his
life.

The United States has not ratified the
American Convention, and the strong wording of this right-to-life article has
worried more than a few congressmen: might not the United States, after
ratification, find itself a defendant before the Inter-American Court of Human
Rights because of Roe v. Wade?

Whether such a worry is realistic or
not (and the U.S.-if it does ratify the Convention-may well take the coward's
way out by qualifying its ratification of Article 4 by a "reservation" or
"statement of understanding"), the American Convention sharply illustrates the
tension between Roe v. Wade and the powerful trend toward maximizing human
rights on the international scene. Just as there is a steady movement in
municipal tort law toward giving a child wider legal opportunities to bring a
cause of action to recover for negligently inflicted prenatal injuries32 - just as in the realm of prenatal torts
viability is less and less regarded as a meaningful criterion for recovery-so
on the international plane the rights of the unborn are gaining ground
continually.

One may therefore hope that scientific knowledge,
jurisprudential self-analysis, and concern for human rights will finally bring
contemporary American law to its senses in the matter of the protection of the
lives of the unborn.33

20. To be sure, one must never forget that Blackstone
had the most profound effect on the education of American lawyers in the
eighteenth and nineteenth centuries: see, e.g., J. S. Waterman, "Thomas
Jefferson and Blackstone's Com-mentaries," in D. H. Flaherty. editor, Essays in
the History of Earls' American Law (Chapel Hill. N.C.: University of North
Carolina Press, 1969). pp. 45 -88.

25. W.
Kent, Memoirs and Letters of James Kent (Boston: Little. Brown and Co., 1898),
p. 276. The Chancellor was, however, converted to evangelical Christianity
before his death: "Of late years my views have altered. I believe in the
doctrines of the prayer books, as I understand them, and hope to be saved
through the merits of Jesus Christ. . . . I rest my hopes of salvation on the
Lord Jesus Christ" (ibid.. pp. 276-77).

26.
K. E. Digby, An Introduction to the History of the Law of Real Property with
Original Authorities, 4th edition (New York: Oxford, The Clarendon Press.
1892), pp. 298-300.

33. For additional
jurisprudential analysis and critique of the current American abortion
position. two readings are indispensable: R A. Destro, ''Abortion and the
Constitut (mn: The Need for a Life Protective Amendment.'' California Law
Review LXIII (1975). p. 1250: and J. T. Noonan. A Private Choice (New York:
Free Press. 1979).

Taken from Slaughter of the
Innocents, copyright 1981. You can order Slaughter of the Innocents
for a total of $21 by calling the Issues, Etc. resource line at
1-800-737-0172.